On Valentines Day 2017, the Opposition Leader, Tim Nicholls introduced the Bail (Domestic Violence) and Another Act Amendment Bill 2017 into the Queensland Parliament. The Bill will see a massive change to domestic violence bail laws.
The proposed Bill was prompted by the tragic death of Ms Terresa Bradford, who was killed by her estranged husband two weeks earlier. Sadly the death was not uncommon with eighteen Queensland women dying in DV related incidents in 2016.
The Bill has five policy objectives:
- Reverse the presumption of bail for an accused charged with a relevant domestic violence offence;
- Create a special bail condition for GPS trackers for people charged with a relevant domestic violence offence;
- Create a mandatory reporting system to alert an alleged victim of domestic violence when the accused:
- applies for bail;
- is released on bail; or
- receives a variation to a bail condition.
- Create a mandatory reporting system when a prisoner (whether or not convicted of domestic violence):
- applies for parole; and
- receives parole
- A process to stay grants of bail for three (3) days, while bail is appealed by police.
Presumption against domestic violence bail
Where a person is held in custody for an offence that they are yet to be convicted of, the Court would usually grant bail, unless the police can demonstrate that the person is an unacceptable risk. This onus is shifted in the Bail Act where the person:
- is already on bail and is alleged to have committed an indictable offence;
- is charged with an offence that carries mandatory life imprisonment;
- is charged with an offence that carries an indefinite sentence;
- is alleged to have breached the Bail Act
- is charged with contravening a control or public safety order contrary to the Criminal Organisation Act;
- is charged with an offence of making threats with a circumstance of aggravation;
- if the person has at any time been a participant in a criminal organisation;
The proposal is that the Court would have to refuse bail to an accused where they were charged with a ‘relevant domestic violence offence”. That is, the legislation will reverse the onus in relation to relevant domestic violence offences and an accused person will need to demonstrate why they should be granted bail. The definitions provision in section 6 of the bail act will be amended to define a relevant domestic violence offence as:
- Choking, suffocation or strangulation in a domestic setting
- Deprivation of Liberty
- A serious violent offence (SVO) as defined in the Penalties and Sentences Act, if the offence is also a Domestic Violence offence.
In our earlier blog post ‘Electronic Tracking for alleged Queensland DVO Offenders‘, we discussed GPS Trackers.
Under the proposed legislation a tracking device is:
“an electronic device capable of being worn, and not removed, by a person, for the purpose of the Queensland Police Service finding or monitoring the geographical location of the person.“
The Bill requires a court or police officer authorised to grant bail to consider requiring an accused person to wear a tracking device while the person is released on bail.
The Bill also requires that the court consider imposing a special condition that prohibits the accused from approaching within a stated distance of a place regularly frequented by the complainant for the offence such as their place of residence or workplace.
Domestic Violence Bail Alert
Where a person charged with a relevant domestic violence offence (see above) makes an application for bail or an application to vary their bail, the prosecutor must give the aggrieved notice of the application within 24 hours of the application being made.
If bail is granted the Court or Police must give notice to the aggrieved of the date that the person is released and the date that the person is next required to appear at Court.
This information is to be provided immediately to the ‘person at risk’.
Parole Alert for victims of Domestic Violence
The Corrective Services Act 2006 is also amended by the Bill to enable an ‘eligible person’ to receive information about a prisoner. An eligible person can be any person who satisfies the Chief Executive that they have been the victim of Domestic Violence, perpetrated by the prisoner. It is not a requirement that the prisoner is in custody for an offence against the eligible person.
The chief executive must provide the person with:
- the prisoners eligibility dates for discharge or release;
- the prisoners date of discharge or release;
- the death or escape of the prisoner; or
- any particular circumstance that could reasonably be expected to endanger the physical safety of the person.
Review of Domestic Violence Bail Decisions
A prosecutor can appeal the decision to grant bail to a person charged with a relevant domestic violence offence. In those circumstances the accused person can be held in custody until 4:00pm, 3 business days after the decision is made. So that a person granted bail at 10:00am on a Friday morning could be held in custody until 4:00pm the following Wednesday.
If the person has been released prior to the appeal by the prosecutor, the reviewing Court may give effect to the stay, by issuing a warrant of apprehension.
The prosecution has always had the power to appeal the decision of a court to grant bail. The current amendment is to permit the police to hold the person in custody for up to three business days. This provision is said to mirror section 40 of the New South Wales Bail Act.
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For specific legal advice you should immediately contact Gatenby Criminal Lawyers on (07) 5580 0120.
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